TMI Blog2022 (3) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... nal demand including overlapping period and hence, 7.5% should be worked out of the demand calculated, being ₹ 4,06,391/- alone. Secondly, when the adjudicating authority accepts the claim of the appellant and allowed a partial refund, different reason or logic cannot be adopted for rejecting the other part of the same predeposit, that is to say, there cannot be two yardsticks for the same issue. Further, the payment here is undoubtedly made prior to the filing of the first appeal and hence, it satisfies the purpose of predeposit as having met by the appellant. Retention of extra amount by Revenue - HELD THAT:- Since in the first place, the collection of tax itself can happen with the authority of law and hence for retaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 took note of the overlapping period in the show-cause notice and the demand for the overlapping period as well, but however, ordered the restriction of the liability for 2008-09 alone. Consequent to the above Order-in-Appeal, vide the application dt. 10/04/2018, the appellant requested for the refund of the payments made, in response to which, a show-cause notice was issued by the adjudicating authority on 21/05/2018 proposing to reject the refund claim as time-barred. The appellant filed a detailed reply justifying its claim but, however, vide the Order-in-Original dt. 20/05/2019, the adjudicating authority sanctioned a partial refund of ₹ 3,49,984/- and rejected the balance of ₹ 24,21,146/-. 1.3. In the said Order-in-Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand is restricted to 2008-09, the predeposit, if any, cannot be calculated against the original demand including overlapping period and hence, 7.5% should be worked out of the demand calculated, being ₹ 4,06,391/- alone. In terms of the Order-in-Original dt. 23/06/2014, the appellant was made to pay per force ₹ 36,43,019/- which is not in dispute and the fact that the appellant decided not to accept it and filed an appeal itself shows that the above payment was certainly not a voluntary payment. Secondly, when the adjudicating authority accepts the claim of the appellant and allowed a partial refund, different reason or logic cannot be adopted for rejecting the other part of the same predeposit, that is to say, there cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id by the assessee. Therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion . This judgement has been confirmed by the Hon ble Apex Court dismissing the appeal filed by the Revenue. Having regard to the facts and circumstances of the case, this judgment is squarely applicable to the case on hand. (emphasis added by me) 5. Learned AR Shri Rama Holla relied on a number of decisions which are of primarily on the limitation per se and not dealing with the peculiar facts as discussed herein above, and hence, the same are distinguishable. 6. In view of the above clear ratio, I am of the view that both rejection and retention are without authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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